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RecensionsBook Reviews

The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace, by Charles J. Morris, Ithaca N.Y.: Cornell University Press, 2005, 328 pp., ISBN 0-8014-4317-2.[Record]

  • Jean Gérin-Lajoie

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  • Jean Gérin-Lajoie

In this volume, the author hurls a cannonball at the heart of the usual application of the National Labor Relations Act (NLRA) by the National Labor Relations Board (NLRB). The impact of his self-qualified “iconoclastic thesis” is such that the puzzled reader may wonder: which is more likely to shatter—the cannonball or the target? The author’s core thesis is that the original and accurate reading of the NLRA gives statutory protection to minority bargaining, for members only, in workplaces where there is no exclusive/majority bargaining agent. Hence, with or without majority representation, employees have the right “to bargain collectively through representatives of their own choosing,” and it is an unfair labour practice for an employer “to interfere with, restrain, or coerce employees in the exercise” of that right. The author is acutely aware that his advocacy of minority bargaining in work places where there is no exclusive/majority bargaining agent, shatters an application of the NLRA covering most of three-quarters of a century. Thus his analysis consists of three main parts. The first part is historical, bearing mostly on the National Industrial Recovery Act of 1933, hence the “Blue Eagle” in the title. The second part is legal, and bears on the statutory content of the existing NLRA. The third part deals with the present-day implications of getting his thesis accepted, and the foreseeable implications should it be accepted in fact. The first part includes a fascinating survey and analysis of the years preceding the 1935 Wagner Act: the years when industrial unionism was hatched in the United States; the years of the struggles between company unions and independent—from the employers—unions; the years of members-only minority attempts at collective bargaining, and of many strikes. The author devotes his considerable talents and efforts to these issues. At the same time, he devotes less effort to the framework of these issues, namely the industry-wide Codes issued by the Federal Government, preferably but not necessarily espousing the terms of mutual agreements between employers and employees’ representatives, dictating for all firms and employees wages, hours and labour standards, and deserving the symbolic pennant of government approval: the Blue Eagle. It was this power of dictating that was judged unconstitutional by the Supreme Court, as exceeding the authority of the Federal Government over interstate commerce. These dictating powers of the Federal Government had obviously been inspired by those of various non-federated European Governments, still commonplace to this day in continental Europe. In North America, the only vestige of such power lies in a rather obscure piece of Québec legislation initially adopted in 1934, but with limited current coverage. This first part of the book also includes an excellent account of the gradual disappearance of members-only agreements, following the passage of the Wagner Act in 1935. Initially, most of the new industrial unions signed mostly members-only agreements. Such were the benchmark agreements of 1937 at U.S. Steel, other steel companies, General Motors, and Chrysler. The legality of such agreements was upheld by the Supreme Court. Left unsettled, however, was the issue of whether bargaining was compulsory with a minority union. To this day it remains unsettled. For the author, this early practice is of major importance to its present-day relevance and to his advocacy. Such minority agreements disappeared rapidly because they became brief stepping-stones to exclusive majority certifications by the NLRB, whether by elections or card-checks. The win-rates of unions before the Taft-Hartley Act of 1947 exceeded 80%. This was a short-lived success for the unions which erased minority bargaining—“a sleeping giant waiting to be reawakened,” in the author’s words. The second part of this volume deals …